Can Employers Mandate the COVID-19 Vaccine?

Use these links to jump to different sections:

• Potential Employment Consequences of Refusing COVID-19 Vaccination
• Exceptions to COVID-19 Vaccine Requirements
• Ensuring Workplace Safety Through COVID-19 Testing
• Find Experienced Legal Help

As the nation’s workers returned to pandemic-shuttered office buildings, many concerns about personal safety lingered about coronavirus exposure—namely, who is vaccinated, who isn’t, and, chiefly, can my employer make me submit proof of vaccination?

In June 2021, one class of 117 healthcare workers in Texas took just this question to federal court when they sued Houston Methodist Hospital over its COVID-19 vaccine requirement. A U.S. district judge dismissed the lawsuit, upholding the hospital’s company vaccination policy and stating it broke no federal law. The Equal Employment Opportunity Commission (EEOC) issued similar guidance regarding federal law, noting that employers can legally require a COVID-19 vaccination status for employees to re-enter the worksite.

And though, in January 2022, the U.S. Supreme Court blocked the Occupational Safety and Health Administration (OSHA) from mandating that large employers require their employees to be vaccinated or tested before returning to work, employers themselves can still set vaccine mandates. That being said, depending on where you live, state law may place further restrictions on the ability of private or public sector employers to require COVID-19 vaccination as a condition of employees returning to work.

Potential Employment Consequences of Refusing COVID-19 Vaccination

So what can workers who don’t want the shot do? Not too much for unvaccinated workers, says Emejuru Law founder Ikechukwu Emejuru, who practices employment law in Silver Springs, Maryland. “But that doesn’t mean the policy won’t be challenged in the future,” he says. “Although, after the federal court in Texas threw out the lawsuit, a challenge could prove difficult.”

If you refuse the vaccination program, you could be out of a job.

Exceptions to COVID-19 Vaccine Requirements

“Unless you have a qualifying disability and/or sincerely held religious belief or disability under the Americans with Disabilities Act (ADA), you can be required, as a condition of employment, to get a COVID-19 vaccine,” Emejuru says. “Otherwise, you could face termination.”

A qualifying disability is a physical or mental impairment that substantially limits major life activity, Emejuru notes, like walking, talking, or even telework. As for sincerely held religious beliefs, employers are required to provide reasonable accommodations for employees who raise religious objections to the vaccine. The EEOC broadly defines “religion” in terms that go beyond being a church member or believer in God and includes moral or ethical beliefs. 

It’s only under those two protections that an employee could potentially seek legal recourse. “You could have legal recourse if your employer punished you for refusing to take the vaccine despite your disability-related objection or sincerely held religious objections to the vaccine,” Emejuru says. 

Ensuring Workplace Safety Through COVID-19 Testing

If you do work for an employer who requires workplace vaccination, be prepared for that employer to also require proof for workplace safety. 

“Employers may take COVID-19 testing to determine if employees entering the workplace have COVID-19, and an employer could also require proof of a COVID-19 vaccination, especially if you are going back into an office setting,” Emejuru says. 

A potential upside of the requirement could be an employer-sponsored incentive program. “Private employers are at liberty to do what they want to ensure a safe workplace, even If that means offering a bonus, gift cards, or even more vacation time to an employee,” Emejuru says. “Some private employers can even offer incentives to vaccinated employees, just like some states have been doing.”

While the vaccination mandates are legally sound and for public health to control the spread of COVID-19, Emejuru says the reality of what going back to work actually looks like might table the issue for a while.

“It is too hard to tell at this point what ‘going back to work’ really means,” he says. “Most office spaces are still dormant, and there appears to be a national trend of employees unwilling to go back full-time. So it’s possible that fully remote unvaccinated workers, or unwilling to get vaccinated, may not have to confront this issue right now.”

Find Experienced Legal Help

If you’d like more information on your employee rights regarding sick leave and other matters, see our overview of employment law or contact an experienced employment lawyer for legal advice.